DEATHS DURING SURGERY CAN’T BE AUTOMATICALLY ATTRIBUTED TO MEDICAL NEGLIGENCE

Introduction

On 7 September 2021, the apex court of India held that in the cases related to surgery if the patient, “it cannot be automatically assumed that the medical professionals were negligent.” In this case, the bench of Justice A.S. Bopanna and Justice Hemant Gupta said, “It is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.”

Many people every year in India died because of medical negligence. “A study by the Harvard University last year showed that nearly 5,000,000 deaths occur in India annually due to medical errors triggered by lack of practical knowledge among the doctors and nurses to handle patients when brought to the hospital.” Here the question is, whether all the deaths during surgery are medical negligence or there are some other reasons also behind it.

Legal point of view of Medical Negligence

There are three categories of the consequences of legally cognizable medical negligence:

  • Criminal labiality
  • monetary liability, and
  • Disciplinary action.

It is to be noted that criminal liability is not provided specifically for “medical negligence” in the Indian Penal code, 1860 (IPC) but some provisions of IPC can relate to medical negligence. For example Section 304A of IPC (Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both) deals with both cases of accidents caused due to rash and negligent motor vehicle driving and also medical negligence leading to the death of a patient.

Monetary compensation (civil liability) for medical negligence can be found under the general law by seeking the remedy before a suitable civil court or consumer forums. The doors of permanent Lok Adalats (which are constituted under the Legal Services Authority Act), can also be knocked by the complainant, if the complaint is regarding to seek relief in the services “in a hospital or dispensery” because these are considered as “public utility services.”

Present case scenario

  • A quick review

The judgment of the Supreme Court came on an appeal to challenge the order of National Consumer Disputes Redressal Commission Order (NCDRC), the payment of 17 lakh was also directed with the interest at the rate of 9% per annum and the accountable period for this payment is from the date on which the complaint was filed to the date of payment.

In this case, the bench of judges observed that the complainant has not been produced any other medical evidence that can show the negligence of the doctors. The doctors had already clarified their medical procedure-related part and position in the affidavit, to clarify that there was no negligence by their side.

“The conclusion reached by the NCDRC on the early aspect appears to be an assumption without the backing of medical evidence,” the bench said, observing that here in comparison with the pieces of evidence presented by the appellants, the inquiry report, on which NCDRC has placed much of its reliance, cannot be treated as a contra medical evidence.

  • What was the case?

As per the case, a patient was diagnosed with a stone in her right kidney and Hydro nephrosis of 2nd grade in her left kidney in October, 1996. Later, on 6 December, 1966, she was admitted to the hospital. Informing about the operation, the doctor said to the patient and her husband that the operation of both the kidneys at the same time could not be done because there were very high chances of severe damage. So doctor advised to operate the left kidney because that was less-affected. The doctor performed the surgery of left kidney which successfully get operated and according to doctor the condition of patient was improved nearly 12 December, 1996, accordingly the chances of second surgery increased.

All the necessary tests were conducted and resultantly it was decided that right kidney would be operated. Operation was done by the physician and surgeon on 16 December, 1996 and during the surgery the standard procedure was also followed but the condition of the patient this time deteriorated and despite of all the efforts that the surgeon could do, the patient expired on 23 December, 1996.

As per the appeal of this case, the issue was regarding the payment of medical bills of the deceased and when the deceased’s husband, who was the union leader, demanded for the same payment, he held a demonstration at the hospital with his workers and because of that a criminal complaint was filled against that hospital and a magisterial enquiry was also conducted there. Later the doctor was treated as guilty by the NCDRC and get fined with Rs 17 lakh as the compensation but the consumer Court’s judgment was challenged and the matter reached to Supreme Court. The doctor asserted that it was already made known to the patient and her husband that the second operation would include high risk of severe damage and the cardiac arrest which was occurred to the deceased is likely to occur in some cases but the proper care was taken by the doctors and all the surgeons.

  • The decision of the court

The bad tolerance of anesthesia was not a main problem according to the top consumer court because it was used in the first surgery also during the operation which was successful. The apex court noted that the cardiac arrest was suffered by the patient in the second surgery and after conducting all the best procedure as the treatment by Boyle’s apparatus had been done and the patient was also moved to CCU, but all the efforts get failed.

The patient had breathed her last after a few days. As already noted, there was no contrary medical evidence placed on record to establish that the situation had arisen due to the medical negligence on the part of the doctors,” the bench said.

Lastly, the bench held that, “There was no medical evidence based on which a conclusion was reached with regard to the medical negligence.”

Conclusion

Every person is subject to law whether he is a teacher, servant, minster, so the doctor as well. As it is known that law is restraining as well as liberating. Here the matter is about the negligence by the doctor’s side. It should be clear that to what extent the doctor should be subject to law? Where does he restraint fair and reasonable. The doctor should not be considered as the master of the patient but as the servant. The law, hopefully, should assist to create conditions congenial to the progress of medicine, to the benefit of the patient, to the protection of the doctor and to the good of society. It should be clear, detailed, balanced and facilitating. The doctor’s abilities are not generally measured only by the success or failure of the medication or operation. The test is invariably the doctor used standard medical care and in the above case it is proved that the doctors and surgeons used proper standard medical treatment.

Author(s) Name: Siddhi Parmar (Manikchand Pahade law college, Aurangabad)

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